Research On Anti-merger Clauses In The Articles Of Association Of Listed Companies

The anti-takeover battle is all about the control.The anti-takeover provisions(ATPs)are set to prevent mergers.Since the battle of baowan,the dispute for equity in the stock market has intensified.Many listed companies change their statutes,concentration on board election,term of office,the "company law" resolution passed the form,effect,procedure,director qualifications,etc.Since there is no independent anti-takeover legislation in China,the provisions of the law on anti-takeover of listed companies scattered in the company law of the People's Republic of China(hereinafter referred to as the company law),the securities law of the People's Republic of China(hereinafter referred to as "securities law"),the measures for the administration of the takeover of listed companies(hereinafter referred to as "purchase management method").The former two belong to the law,and the last one is in the nature of administrative rules which are below the law at the effect level.Among them,the contents of the anti-takeover terms are weak,the legal norms can be operated poorly,and the anti-takeover measures are unclear,leading to the chaotic situation of the anti-takeover market.Through empirical research about ATPs,the paper summarize the classification of ATPs,such as staggered board provision,supermajority provision,restrictions on directors' qualifications,restrictions on proposal rights,increase the obligation of information disclosure,golden parachute clauses,etc.Then the paper probes into the legality judgment standard of the anti-merger clause,and believes that the principle should be stipulated first,putting forward the protection of the legitimate rights and interests of small and medium shareholders,the board of directors of the faithful principle,protecting the legal rights and interests of the target company,interests balance on stakeholders as legality judgment principle of ATPs.In the end,according to the principle of legality judgment and basic legal theory,think that staggered board provision,restrictions on directors' qualifications,golden parachute due to effective because of not in violation of mandatory provisions of the law,not infringe upon the lawful rights and interests of the company and the shareholders;supermajority provision,restrictions on proposal rights,increase the obligation of information disclosure due to invalid on account of violating the principle of equal shareholder-right,improper restrictions on shareholders' fundamental rights,broking through the boundary of the articles of association autonomy.